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Hein ruling has 'quick and dramatic' effect on church-state cases

By The Associated Press
11.09.07

MADISON, Wis. — A June U.S. Supreme Court ruling has quickly weakened the ability of taxpayers to sue government for violating the separation of church and state, legal experts say.

The court ruled in Hein v. Freedom from Religion Foundation that taxpayers could not sue over executive branch spending that allegedly promoted religion. The 5-4 decision dismissed a lawsuit by the Madison-based Freedom from Religion Foundation that challenged President Bush's faith-based initiative.

Taxpayers have the standing to sue only when Congress specifically authorizes money for religious purposes, Justice Samuel Alito wrote. Otherwise, courts would be clogged with cases complaining about the day-to-day activities of government employees, he wrote.

At the time, advocates for the separation of church and state said the ruling's impact would be limited. But less than six months later, legal observers are startled by the fallout in cases claiming violations of the establishment clause of the First Amendment, which prohibits government-sponsored religion.

"This is a bigger deal than anybody realized and can really change the dynamics of when these cases get brought," said George Washington University law professor Ira Lupu. "This could actually turn out to be quite sweeping in the way it limits the ability of people to challenge what the government does as a violation of the establishment clause."

Lupu and his colleague Robert Tuttle argue in the draft of a new paper that the ruling's impact was "quick and dramatic" across the nation.

Just last week, the 7th U.S. Circuit Court of Appeals cited the new precedent in ruling 2-1 that taxpayers cannot challenge the practice by the Indiana House of Representatives of opening its sessions with prayer.

A federal judge had previously ruled the practice was unconstitutional. But the appeals court said taxpayers could not sue because lawmakers had not set aside money for the prayers and the incidental costs associated with them came from its general budget.

"The plaintiffs have not tied their status as taxpayers to the House's allegedly unconstitutional practice of regularly offering a sectarian prayer," Judge Kenneth Ripple wrote for the majority.

Government lawyers are asking the same appeals court to dismiss a lawsuit that objects to the U.S. Department of Veterans Affairs' use of religion in treating ailing veterans.

The Madison-based foundation is suing over the agency's use of chaplains, its practice of giving patients spiritual assessments and its drug-and-alcohol treatment programs that incorporate religion.

In a brief filed last week, Department of Justice lawyers said the case "runs afoul of each of the principles adopted" in the June decision. The plaintiffs cannot point to specific funding earmarks for the religious activities they claim are unconstitutional, they wrote. A decision on that issue is expected in coming weeks.

The Justice Department did not object to the foundation's ability to sue in the district court, where a judge upheld the constitutionality of the Veterans Affairs programs.

"It was previously assumed entirely that taxpayers would have standing to sue a program of this pervasive nature that is funded by Congress," said Annie Laurie Gaylor, the foundation's co-president. "That is very revealing of how the ruling will be used."

In another case, the foundation recently dropped a suit that targeted a taxpayer-funded Christian ministry program at a women's prison in New Mexico. The foundation voluntarily dismissed the 2-year-old case after a judge warned its members likely did not have standing in light of the Hein ruling.

Gaylor said that decision was painful because they had strong evidence the program was illegally indoctrinating inmates with Christian teachings.

The foundation has also dropped plans to sue several states and universities over faith-based programs that were created by state executive branches, she said.

Daniel Mach, director of litigation at the ACLU Program on Freedom of Religion and Belief in Washington, said the ruling should not affect cases where money is specifically earmarked for religious purposes. He pointed to a ruling in Louisiana last month, where a federal judge blocked two churches from receiving taxpayer-funded grants.

He said cases where observers and participants — not taxpayers — object to prayer in schools or other government programs should also still be allowed to move forward. As a result, he said the overall impact should be limited.

"Proponents of government-sponsored religion are trying to expand the Supreme Court's narrow decision," he said.

Judith Schaeffer, legal director for People for the American Way Foundation, a liberal-leaning advocacy group, said she was disturbed by the recent legal developments.

"The ruling has created a 'Get out of jail free' card for certain government officials to engage in unconstitutional conduct because it cannot be challenged by taxpayers," she said. "It is another instance where the courthouse doors will be closed to Americans who are seeking justice."


Related

Federal judge backs VA's use of religion in treating veterans

Freedom From Religion Foundation president says group will appeal ruling, which found agency isn't violating establishment clause. 01.10.07

Taxpayers can't challenge faith-based program, justices rule
5-4 ruling blocks lawsuit by atheist-agnostic group against initiative to include religious charities in competition for federal grants. 06.25.07

La. lawmakers detail purpose for money set aside for churches
Legislators hope explaining that funds will be used for social service programs, not religious ones, will defuse ACLU lawsuit. 10.30.07

7th Circuit tosses challenge to Ind. legislative prayers
Three-judge panel rules taxpayers who filed lawsuit lack legal standing, but ACLU says there are still options to keep case alive or begin new one. 10.31.07

First Amendment claims get mixed reception at Court
By Tony Mauro Rulings shed light on how more conservative majority looks at the First Amendment — and how the moderate-liberal wing is losing ground. 06.26.07

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